DATE: 20050825
DOCKET: C40125
COURT OF APPEAL FOR ONTARIO
ROSENBERG, BLAIR and JURIANSZ JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Respondent
- and -
GARY PEAZER
Appellant
Timothy E. Breen for the appellant
J. Sandy Tse for the respondent
Heard: May 10, 2005
On appeal from conviction dated December 20, 2002, by Justice Rose T. Boyko of the Superior Court of Justice and sentence imposed May 7, 2003.
ROSENBERG J.A.:
[1] The appellant appeals from his conviction and sentence on charges of robbery, assault using a weapon, use of an imitation firearm for the purpose of committing an offence and possession of a weapon for the purpose of committing an offence. All charges arise out of a single incident in which two masked men attacked the victim outside an ATM machine. While there was circumstantial evidence linking the appellant to the offences, the prosecution also relied on the victim’s testimony that he could identify the appellant as one of his assailants.
[2] The appellant has raised a number of grounds of appeal concerning the conduct of the trial and the charge to the jury. In my view, the appellant must succeed on two of those issues and I therefore need not deal with the other grounds of appeal from conviction or the appeal from sentence.
[3] In my view, the trial judge failed to adequately direct the jury with respect to the particular frailties of the victim’s purported identification of the appellant. Further, the trial judge erred in refusing to permit defence counsel to question the victim on a conversation he had with another person during a break in the trial and while the victim was still under cross-examination. Accordingly, I would allow the appeal from conviction and order a new trial.
THE FACTS
[4] At about 11:00 p.m. on June 10, 2001, the victim, Christopher Ozog, used an ATM machine to deposit his cheque from his employment. As he was leaving the machine he was confronted by two men. One man (the taller of the two) hit him over the head. The second man hit him across the knees with a bat. The men forced the victim over to the ATM machine in an attempt to get him to give them money from the machine. The victim withdrew $200, which he gave to the assailants. While he was using the machine, the victim glanced over and looked at the taller man. When he saw the victim looking at him, the man threatened the victim. The men then tried to grab the victim’s bag. He resisted and the taller man again hit him with the gun while the other man struck him again with the bat. The victim was able to get control of the bag, break free and run away. The two men then ran towards a housing complex.
[5] Once the assailants had left, Mr. Ozog used his cell phone to call 911 and went to his car. As he was driving down the street, he saw a vehicle leave the housing complex at a high rate of speed. He remained on the line with the 911 operator while he followed the car. After he obtained the car’s licence number, he was persuaded by the operator to break off following the vehicle and return to the scene to await the police. Mr. Ozog gave the licence number to the operator and described the vehicle as a 1997 or newer beige coloured Mazda. The withdrawal from the ATM was recorded at 11:41 p.m. The 911 records show that the call from the victim lasted from 11:42 to 11:44 p.m.
[6] Both of the assailants were masked. The taller man was black, about 6’ tall and wore two bandannas: one was drawn across the mid-bridge of his nose and the other partially covered his eyebrows. One of the men was wearing “a top on inside out”.
[7] At trial, Mr. Ozog testified that the gunman (the taller man) had a prominent bone structure above his eyes. He made no mention of this characteristic in his statement to the police or in his testimony at the preliminary inquiry.
[8] At about 2:30 a.m., the appellant returned to his home. He was driving his mother’s car, a silver 1993 Mazda. The licence number matched the number provided by Mr. Ozog. The police were waiting for the appellant. He was described as black, 6’1” tall and 175 lbs. He was wearing baggy blue jeans, a red or maroon football jersey and work boots. The police did not see any injuries to the appellant. In the trunk of the appellant’s car the police found a Toronto Blue Jays 27” baseball bat and a large men’s sweat top with a logo from a high school.
[9] Mr. Ozog testified at trial that the bat used by the smaller assailant was a children’s size bat and that the barrel portion of the bat was wrapped in grey duct tape. The bat seized from the appellant’s car did not have any tape on the barrel and was not sticky as if it had had adhesive on it. Mr. Ozog described the inside-out top or sweater worn by one of the assailants as being black with yellow and white stitching with a crest in the middle. The top seized from the appellants’ car was blue with no yellow stitching and the crest was not in the centre.
[10] In examination-in-chief, Mr. Ozog testified that he had not seen either of the perpetrators since the robbery. In cross-examination, he changed this testimony and said that he had seen the appellant at the preliminary inquiry. Defence counsel pressed Mr. Ozog on this discrepancy and at one point the witness asked for an adjournment to speak to someone. The trial judge granted the adjournment. In the absence of the jury and the witness, defence counsel asked the trial judge whether he could question Mr. Ozog as to any contact he had with others during the break. When the trial resumed, the trial judge asked the witness whether he had met with anyone. He said that he met with his father but did not speak about his evidence. The trial judge refused to permit defence counsel to pursue the issue further.
[11] In re-examination, Mr. Ozog testified that on the day of the preliminary inquiry, he was sitting in the hallway at court when the appellant walked by him. The victim turned to his father and said, “that’s the guy who robbed me”.
[12] The appellant did not testify. However, a friend, Emerald Reeves, testified that on the night of the robbery the appellant visited her home. He arrived at about 9:30 p.m. and remained for about 30 minutes. He returned to her home at about 11:30 p.m. and then he drove her and her friend to a take-out restaurant where they picked up some food and then returned to Ms. Reeves’ home until about 2:30 or 3:00 a.m. The morning of the appellant’s arrest, the police asked Ms. Reeves to attend the police station. She did so and provided a written statement.
ANALYSIS
The charge to the jury on identification evidence
[13] The appellant’s submissions concerning the trial judge’s charge on the identification evidence centre on the victim’s identification of the appellant outside the courtroom at the preliminary inquiry.
[14] The trial judge told the jury that the case against the appellant “depends to a large extent, on eye witness testimony”. She then instructed the jury to be cautious about relying on such testimony, advising the jury that there have been miscarriages of justice in the past because of mistakes in eyewitness testimony and that honest witnesses can be mistaken. The trial judge gave the jury a number of factors to consider such as the time of day, whether the witness knew the assailant, whether he had seen the assailant previously, how long he watched the assailant, the lighting conditions and whether he had a clear view of the assailant. The trial judge told the jury to consider the description the victim gave. The trial judge gave the jury directions about the use to be made of a photo line-up, although there was none in this case. She then gave this direction:
You heard of a situation that also occurred outside of the courtroom during the preliminary inquiry. Did the witness ever fail to identify Gary Peazer as the person whom he saw? Has Christopher Ozog ever changed his mind about the identification?
You should note that the officer’s identification of Mr. Peazer in the dock or in the courtroom, does not assist you to determine whether he was the taller assailant. Also Mr. Ozog’s observation outside the courtroom at the preliminary inquiry, must be subject to the same scrutiny as the factors I have just given you to scrutinize eye witness identification. [Emphasis added.]
[15] There were particular concerns with the identification outside the courtroom and it was not sufficient to simply tell the jury to subject this evidence “to the same scrutiny as the factors I have just given you to scrutinize eye witness identification”.
[16] In re-examination of Mr. Ozog, Crown counsel established that he saw the appellant in a busy hallway but that the appellant was walking alone. He noticed the appellant because he had the same eyes as the taller assailant. He then said this, “I had assumed he was going to be at court that day. I then looked at him. He did not look at me, I looked at him, and I told my father, who was sitting beside me, I said that’s the guy who robbed me.’ … I looked at his face, I looked at his eyes, and I knew that was the man that did it.” There was no evidence as to physical characteristics including colour of any of the other people in the corridor.
[17] In R. v. Hibbert (2002), 2002 SCC 39, 163 C.C.C. (3d) 129 (S.C.C.) the trial judge instructed the jury that the law provides that “little weight” is to be given to in-dock identification. Arbour J., speaking for the majority of the court, considered the evidentiary value of in-dock identification. She explained at para. 49 that in the circumstances of that case, the evidence did have some value.
[18] However, Arbour J. went on to hold at para. 50 that the instruction given by the trial judge was not sufficient:
I am of the view that, in the circumstances of this case, the trial judge should have cautioned the jury more strongly that the identification of the accused in court, by Mrs. McLeod and Mrs. Baker, was highly problematic as direct reliable identification of the perpetrator of the offence. I think it is important to remember that the danger associated with eyewitness in-court identification is that it is deceptively credible, largely because it is honest and sincere. The dramatic impact of the identification taking place in court, before the jury, can aggravate the distorted value that the jury may place on it. I am not persuaded that the instruction quoted above, to the effect that such identification should be accorded "little weight", goes far enough to displace the danger that the jury could still give it weight that it does not deserve.
[19] Although the identification outside the courtroom did not have the dramatic impact that concerned Arbour J. in Hibbert, the evidence was highly problematic and in my view, a stronger caution was required. There was no information about whether there were any other persons of a similar height, build, colour and appearance outside the courtroom at the time. Most importantly, the victim expected to see the person the police had arrested. I am not suggesting that the trial judge should have instructed the jury that this evidence was entitled to virtually no weight at all, but some special instructions were required. At a minimum the jury should have been instructed that:
(i) The victim expected to see the person the police had arrested and this could have had an influence on his identification; and
(ii) There was no evidence that anyone else with a similar build to the appellant was present at the time of the purported identification and therefore the victim did not have a fair opportunity to identify his perpetrator as would have been the case had there been a photo line-up.
[20] In my view, reference to the generic factors concerning eyewitness testimony was not sufficient.
[21] The appellant raised one other concern with the trial judge’s directions on the identification evidence. In the course of discussing the various descriptions that the victim gave of his assailants, the trial judge told the jury to consider: “How certain was the witness about the other descriptions?” In my view, the trial judge should also have reminded the jury, as recommended by Arbour J. in Hibbert at para. 52, of “the very weak link between the confidence level of a witness and the accuracy of that witness”.
Failure to permit cross-examination
[22] I have set out the background to this ground of appeal. In short, in the course of cross-examination the victim asked for and was given a break. When he returned, the trial judge asked the witness whom he had talked to and, having obtained an assurance that he had not discussed his evidence, refused to permit cross-examination on what had been discussed. The appellant submits that the trial judge erred in refusing to permit cross-examination.
[23] The trial judge has a broad discretion to control the examination of witnesses and this includes the right and even duty to stop cross-examination that is repetitive, prolix or abusive. Some of defence counsel’s cross-examination of the victim just before he asked for a break was repetitive and the trial judge would have been justified in intervening. However, she was not entitled to prevent counsel from exploring a relevant issue. As Cory J. said in R. v. Osolin (1993), 86 C.C.C. (3d) 481 (S.C.C.) at 517, cross-examination “is the ultimate means of demonstrating truth and of testing veracity”. The victim was in the middle of cross-examination. When he asked for the adjournment he had been caught in an inconsistency about when he first identified his assailant. This was not a peripheral issue. Counsel was entitled to explore, within reason, the content of the conversation with the victim’s father. He was entitled to test the victim’s assertion that he did not discuss the case with his father. That the trial judge’s ruling prejudiced the appellant’s right to a fair trial is demonstrated by the fact that in re-examination, Mr. Ozog revealed that he had a conversation with his father in the hallway when he claimed to have identified the appellant as his perpetrator.
CONCLUSION
[24] In my view, there must be a new trial in light of these two errors. While there was some circumstantial evidence, the case was presented to the jury as one that rested primarily on eyewitness identification. Both grounds of appeal relate to the victim’s identification of the appellant as his assailant. This would not be a proper case to apply the proviso in s. 686(1)(b)(iii) of the Criminal Code.
[25] Accordingly, I would allow the appeal, set aside the convictions and order a new trial.
Signed: “M. Rosenberg J.A.
“I agree R. A. Blair J.A.”
“I agree R. G. Juriansz J.A.